Roe v. Cash

Filing 3

ORDER: (1) Construing 1 Motion to Vacate, Set Aside or Correct Sentence Under 28 USC 2255 as a Petition for Writ of Habeas Corpus; (2) Construing Trust Account Statement as Motion to Proceed In Forma Pauperis and Denying as Moot; and (3) Dismissing Case Without Prejudice and With Leave to Amend. Petitioner must obtain the necessary order from the Ninth Circuit Court of Appeals to file Petition in this Court.Clerk is directed to send Petitioner a blank Ninth Circuit Application for Leave to File Second or Successive Petition. Signed by Judge Michael M. Anello on 12/14/2010. (cc: Form Mailed to Petitioner)(All non-registered users served via U.S. Mail Service)(leh)

-JMA Roe v. Cash

Doc. 3

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
MICHAEL MATTHEW ROE, Petitioner,
Civil No.

10-CV-1963 MMA (JMA)

ORDER: (1) CONSTRUING MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE UNDER 28 U.S.C. § 2255 AS A PETITION FOR WRIT OF HABEAS CORPUS PURSUANT TO 28 U.S.C. § 2254; (2) CONSTRUING TRUST ACCOUNT STATEMENT AS MOTION TO PROCEED IN FORMA PAUPERIS AND DENYING MOTION AS MOOT; and

vs.

BRENDA M. CASH,

Respondent.

(3) DISMISSING CASE WITHOUT PREJUDICE AND WITH LEAVE TO AMEND

On September 15, 2010, Petitioner, a prisoner currently incarcerated at the California State Prison, Los Angeles County and proceeding pro se, filed a Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255. (See Doc. No. 1.) Petitioner is currently in state custody pursuant to state court conviction from San Diego County. He seeks to attack the validity of that conviction. (Id.) ///
-110cv1963

Dockets.Justia.com

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ORDER CONSTRUING DOCUMENT AS A PETITION FILED PURSUANT TO 28 U.S.C, § 2254 Although the current action was filed as a Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255, the Court will construe it as a Petition for a Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254. Because Petitioner is in state custody and is challenging the validity of a state court conviction, he may not proceed under section 2255, but may only proceed with a habeas action in federal court under 28 U.S.C. § 2254. White v. Lambert, 370 F.3d 1002, 1006-07 (9th Cir. 2004) (holding that section 2254 is the proper jurisdictional basis for a habeas petition brought by an individual "in custody pursuant to a state court judgment"). ORDER CONSTRUING PRISON TRUST ACCOUNT STATEMENT AS APPLICATION TO PROCEED IN FORMA PAUPERIS Petitioner has submitted a prison trust account statement which the Court construes as an application to proceed in forma pauperis. Because the Court denies this Petition as second or successive, the application to proceed in forma pauperis is DENIED as moot. PETITION BARRED BY GATEKEEPER PROVISION It appears that the instant Petition is not the first Petition for a Writ of Habeas Corpus Petitioner has submitted to this Court challenging his December 17, 1996 conviction in San Diego Superior Court case No. SCD 123639. On October 12, 2004, Petitioner filed in this Court a Petition for Writ of Habeas Corpus in case No. 04cv2062. In that petition, Petitioner challenged his December 17, 1996 conviction in San Diego Superior Court case No. SCD 123639 as well.1 On August 5, 2005, this Court granted Respondent's Motion to Dismiss finding the Petition was barred by the statute of limitations, procedurally defaulted and was a

On the face of the Petition, Petitioner states he is challenging a conviction that occurred in San Diego Superior Court on February 17, 1996, (Pet. at 1) rather than December 17, 1996. However, Petitioner further claims that he challenged the February 17, 1996 conviction in a Petition for Review denied by the California Supreme Court, case number S072666, which is the same California Supreme Court case number given to the Petition for Review of his December 17, 1996 conviction. [See Report and Recommendation dated July 5, 2005, Case number 04cv2062 LAB (RBB).] Therefore, it appears Petitioner is challenging the same conviction in the present Petition that he previously challenged in case number 04cv2062 LAB (RBB).

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mixed petition not entitled to stay and abeyance. (See Order filed August 5, 2005 in case No. 04cv2062 LAB (RBB) [Doc. No. 12].) Petitioner did not appeal that determination. It now appears Petitioner is seeking to challenge the same conviction he challenged in his prior federal habeas petition. Unless a petitioner shows he or she has obtained an Order from the appropriate court of appeals authorizing the district court to consider a successive petition, the petition may not be filed in the district court. See 28 U.S.C. § 2244(b)(3)(A). Here, there is no indication the Ninth Circuit Court of Appeals has granted Petitioner leave to file a successive petition. CONCLUSION In light of the above, the Court (1) construes Petitioner's Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255, as a Petition for a Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254, (2) construes the prison trust account statement Petitioner submitted as an application to proceed in forma pauperis and DENIES it as moot, and (3) DISMISSES this action without prejudice to Petitioner filing a petition in this court if he obtains the necessary order from the Ninth Circuit Court of Appeals. The Clerk of Court is directed to send Petitioner a blank Ninth Circuit Application for Leave to File Second or Successive Petition.

IT IS SO ORDERED. DATED: December 14, 2010 Hon. Michael M. Anello United States District Judge

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